Karnataka High Court
Miss. Madhuri @ Madhavi vs Shri.Chaitanya on 30 October, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2023:KHC-D:12668-DB
MFA No. 101863 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 101863 OF 2016 (MV-I)
BETWEEN:
SHRI. MANOJ S/O. SHANKAR TARALEKAR,
AGE: 28 YEARS, OCC: SERVICE,
R/O: KAKTI-591113,
TALUKA & DIST: BELAGAVI.
...APPELLANT
(BY SMT. SUNANDA P. PATIL, ADVOCATE)
AND:
1. SHRI. CHAITANYA S/O. BABAN KUCHEKAR,
AGE: 38 YEARS, OCC: BUSINESS,
R/O: 102, SHANIVARPETH,
SHIVAKUMAR SHINDHE GALLI, ARJUN CHOWK,
HIREMATH
KARAD-591201, DISTRICT: SATARA,
Digitally signed MAHARASTRA STATE,
by SHIVAKUMAR
HIREMATH (OWNER OF SWIFT CAR BEARING
Date: 2023.11.04
12:55:18 +0530 NO.MH-11/AW-4825).
2. THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
DIVISIONAL OFFICE, CLUB ROAD,
BELAGAVI-590001,
POLICY ISSUING OFFICE
THE NEW INDIA ASSURANCE CO. LTD.,
NEW INDIA CENTRE(131000), 12TH FLOOR,
17/A, COOPERAGE, MUMBAI
MAHARASTRA-400039,
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NC: 2023:KHC-D:12668-DB
MFA No. 101863 of 2016
(INSURER OF SWIFT CAR BEARING
NO.MH-11/AW-4825).
...RESPONDENTS
(BY SRI. RAJASHEKHAR S. ARANI, ADV. FOR R2,
NOTICE TO R1 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES
ACT, 1988, AGAINST THE JUDGMENT & AWARD
DATED:28.01.2016, PASSED IN MVC.NO.15/2013 ON THE FILE
OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL-V, BELAGAVI,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, VIJAYKUMAR A.PATIL, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the injured claimant seeking enhancement of the compensation being aggrieved by the common judgment and award dated 28.01.2016 passed in MVC No.15/2013 by the 4th Addl. District and Sessions Judge and Member, MACT-V, Belagavi (hereinafter referred to as 'the Tribunal').
2. Brief facts giving rise to filing of this appeal are that the appellant filed a claim petition claiming compensation for the injuries suffered in the road traffic -3- NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 accident occurred on 16.11.2012 in the village limits of Bhingewadi, Athpadi Taluk, Sangli District. It is averred that the appellant was riding the motorcycle bearing No.MH-10/BH-2749, at that time, a Swift car bearing No.MH-11/AW-4825 driven by its driver came from opposite direction on wrong side and in violation of traffic rules, dashed to the motorcycle resulted in sustaining injuries by the claimant. It is further averred that the appellant took treatment at Wanless Hospital, Miraj, he was inpatient for a period of 25 days, underwent surgery and incurred huge medical expenses. It is also averred that the appellant was working as Teacher in Jawaharlal Shetki Vidyalay Piliv at Athpadi and was drawing salary of Rs.21,000/- p.m. and due to the accident, he suffered permanent disability.
3. The respondents No.1 and 2 i.e., owner of the offending vehicle and the insurance company entered appearance and opposed the claim petition by denying age, occupation, income of the injured/appellant and -4- NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 averred that the compensation sought is excessive and exorbitant. It is submitted that there was no negligence on the part of the driver of the offending vehicle and the appellant who was riding the motorbike was negligent has resulted in accident.
4. The Tribunal framed issues and recorded the evidence of parties. The appellant examined himself as PW-1 and examined Dr. G.K. Arun as PW-4 and got marked the documents. The Tribunal has awarded compensation of Rs.1,38,340/-.
5. Smt. Sunanda P. Patil learned counsel appearing for the appellant submits that the Tribunal has committed error in awarding meagre compensation under the heads pain and suffering, loss of amenities, food, nourishment and convenience expenses, which is required to be enhanced as the appellant was treated as inpatient as 25 days and undergone surgery. It is submitted that the doctor has opined that the appellant has sustained grievous injuries and suffered disability of 55% in respect -5- NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 of right lower limb, 40% in respect of left lower limb and 40% in respect of right upper limb. However, the Tribunal has assessed disability at 20%. It is further submitted that the Tribunal despite assessing the disability which is also on lower side has failed to award any compensation towards loss of earning capacity as the appellant's capacity to work has reduced substantially, consequently reduced the income after the accident. Hence, the appellant is entitled for the compensation under the head of loss of future earning capacity. In support of her contention, she places reliance on the decision of Hon'ble Supreme Court in the case of Hari Om Vs. National Insurance Co. Ltd. and others1.
6. It is submitted that the award of compensation on other heads is also on lower side and seeks to enhance the same. It is submitted that the Tribunal has not awarded any compensation under the head of loss of income during laid up period as the appellant was on leave 1 2023 ACJ 595 -6- NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 for more than 105 days and was inpatient for 25 days and thereafter he was required to take two months' rest.
Hence, he is entitled for compensation under the head loss of income during laid up period.
7. Per contra, Sri Rajashekahar Arani, learned counsel for respondent No.2 submits that the Tribunal has justified in not awarding any compensation under the head loss of future earning capacity as the appellant has not placed any evidence for the loss of income due to the accident and in injury cases, no compensation can be granted under the head of loss of future earning capacity.
It is submitted that the award of compensation on other heads is just and proper and does not call for any enhancement.
8. We have heard the learned counsel for parties, perused the memorandum of appeal and Tribunal records.
The points that arise for consideration in this appeal are:
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1) Whether the Tribunal has justified not awarding any compensation under the head loss of future earning?
2) Whether the appellant is entitled for the enhanced compensation?
9. The point No.1 is answered in the negative and point No.2 is answered in the affirmative for the following reasons:
a) It is not in dispute that in the road accident dated 16.11.2012, the appellant has suffered following injuries :
1) Fracture over right humerus i.e., right arm
2) Fracture over left femo i.e., left thigh
3) Fracture over right femoral head and shaft i.e., right hip joint.
Admittedly, the insurance company has not disputed its liability. The appellant to substantiate his claim of disability has examined Dr. G.K. Arun as PW-4 and got marked Ex.P-4 wound certificate, Ex.P-6 discharge -8- NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 summery which clearly establish that the appellant has suffered grievous injures and undergone treatment in Waless Hospital, Miraj. On close scrutiny of the oral testimony of PW-4, it is evident that the doctor has issued the wound certificate and opined that the claimant has suffered disability of 55% in respect of right lower limb, 40% in respect of left lower limb and 40% in respect of right upper limb. In para 4 of the evidence of PW-4 the doctor has opined that the appellant is facing restriction of movements of joints and he is unable to sit cross legged.
On further scrutiny of the medical evidence on record, it is evident that the appellant has suffered disability to the extent referred supra. In para 7 of the affidavit of PW-4 has made a reference with regard to the clinical findings and guidelines of ALIMCO and WHO for arriving at such conclusion of percentage of disability.
It would be useful to refer the decision of the Hon'ble Supreme Court in the case of Sidram Vs. Division Manager, United India Insurance Co. Ltd., and -9- NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 another2. The relevant paragraphs are extracted hereinbelow:
29. The process of determining the compensation by the Court is essentially a very difficult task and can never be an exact science. Perfect compensation is hardly possible, more so in claims of injury and disability. As rightly pointed out in H. West & Son Ltd. v. Shephard, 1958-65 ACJ 504 (HL, England):
"...money cannot renew a physical frame that has been battered."
30. The principle consistently followed by this Court in assessing motor vehicle compensation claims, is to place the victim in as near a position as she or he was in before the accident, with other compensatory directions for loss of amenities and other payments. These general principles have been stated and reiterated in several decisions. [Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683.]
31. It is now a well settled position of law that even in cases of permanent disablement Incurred as a result of a motor- accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects as well. We have come across many orders of different tribunals and unfortunately affirmed by different High Courts, taking the view that the claimant is not entitled to compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. That is not a correct position of law. There is no justification to exclude the possibility of compensation for future prospects in accident cases involving 2 2022 LiveLaw (SC) 968
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 serious injuries resulting in permanent disablement. Such a narrow reading is illogical because it denies altogether the possibility of the living victim progressing further in life in accident cases - and admits such possibility of future prospects, in case of the victim's death.
32. This Court has emphasised time and again that "just compensation" should include all elements that would go to place the victim in as near a position as she or he was in, before the occurrence of the accident. Whilst no amount of money or other material compensation can erase the trauma, pain and suffering that a victim undergoes after a serious accident, (or replace the loss of a loved one), monetary compensation is the manner known to law, whereby society assures some measure of restitution to those who survive, and the victims who have to face their lives.
33. In Santosh Devi v. National Insurance Company Limited and Others, (2012) 6 SCC 421, this Court held that:
14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121] that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be nave to say that the wages or total emoluments/income of a person who is self employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life.
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016
15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put in extra efforts to generate additional income necessary for sustaining their families.
16. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lakh.
17. Although the wages/income of those employed in unorganised sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the government employees and those employed in private sectors, but it cannot be denied that there has been incremental enhancement in the income of those who are self employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc.
18. Therefore, we do not think that while making the observations in the last three lines of para 24 of Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 1211 judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self- employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30% increase in his total income over a period of time and if he/she becomes the victim of an accident then the same formula deserves to be applied for calculating the amount of compensation."
34. In Jagdish v. Mohan and Others, (2018) 4 SCC 571, the victim, a carpenter, suffered permanent disablement, and his claim for compensation including for loss of future prospects was considered by a three-Judge Bench which included, incidentally, the judges who had decided National Insurance Company (supra). This Court held that:
"13. In the judgment of the Constitution Bench in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680], this Court has held that the benefit of future prospects should not be confined only to those who have a permanent job and would extend to self-employed individuals. In the case of a self-employed person, an addition of 40% of the established income should be made where the age of the victim at the time of the accident was below 40 years. Hence, in the present case, the appellant would be entitled to an enhancement of Rs. 2400 towards loss of future prospects.
14. In making the computation in the present case, the Court must be mindful of the fact that the appellant has suffered a serious disability in which he has suffered a loss of the use of
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 both his hands. For a person engaged in manual activities, it requires no stretch of imagination to understand that a loss of hands is a complete deprivation of the ability to earn. Nothing at least in the facts of this case-can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our low values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering Awards of compensation are not law's doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity.
15. The Tribunal has noted that the appellant is unable to eveneat or to attend to a visit to the toilet without the assistance of an attendant. In this background, it would be a denial of justice to compute the disability at 90%. The disability is indeed total. Having regard to the age of the appellant, the Tribunal applied a multiplier of 18. In the circumstances, the compensation payable to the appellant on account of the loss of income, including future prospects, would be Rs 18,14,400. In addition to this amount, the appellant should be granted an amount of Rs 2 lakhs on account of pain, suffering and loss of amenities. The amount awarded by the Tribunal towards medical expenses (Rs 98,908); for extra nourishment (Rs 25,000) and for attendant's expenses (Rs 1 lakh) is maintained. The Tribunal has declined to award any amount towards future treatment. The appellant should be allowed an amount of Rs 3 lakhs towards future medical expenses. The appellant is thus awarded a total sum of Rs 25,38,308 by way of compensation. The appellant would be entitled to interest at the rate of 9%
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 p.a. on the compensation from the date of the filing of the claim petition. The liability to pay compensation has been fastened by the Tribunal and by the High Court on the insurer, owner and driver jointly and severally which is affirmed. The amount shall be deposited before the Tribunal within a period of 6 weeks from today and shall be paid over to the appellant upon proper identification.
35. The case of Parminder Singh v. New India Assurance Company Limited and Others, (2019) 7 SCC 217, involved an accident victim, who underwent surgery for hemiplegia (weakness of one half of the body on the left side; in this case, caused by an accident). According to the treating medic, the victim could not work as a labourer or perform any agricultural work, or work as a driver (as he was wont to); the assessment of his disability was at 75%, and of a permanent nature. The Court held that:
"5.1. The appellant has however, produced an affidavit by his employer in this Court. As per the said affidavit, the appellant was earning Rs 10,000 p.m. at the time of the accident.
5.2. On the basis of the affidavit filed by the employer of the appellant, we accept that the income of the appellant was Rs 10,000 p.m. at the time of the accident, for the purpose of computing the compensation payable to him.
5.3. Taking the income of the appellant as Rs 10,000 p.m., with future prospects @ 50% as awarded by the High Court, the total income of the appellant would come to Rs 15,000 p.m. 5.4. The appellant was 23 years old at the time when the accident occurred. Applying the multiplier of 18, the loss of future earnings suffered by the appellant would work out to Rs 15,000 x 12 x 18 = Rs 32,40,000.
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 *************** 5.7. In K. Suresh v. New India Assurance Co. Ltd. (2012) 12 SCC 274, this Court held that: (SCC p. 279, para 10)
10. It is noteworthy to state that an adjudicating authority, while determining the quantum of compensation, has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. Hence, while computing compensation the approach of the Tribunal or a Court has to be broad-based. Needless to say, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion of just compensation" should be inhered."
5.9. In the present case, it is an admitted position that it is not possible for the appellant to get employed as a driver, or do any kind of manual labour, or engage in any agricultural operations whatsoever, for his sustenance. In such circumstances, the High Court has rightly assessed the appellant's functional disability at 100% insofar as his loss of earning capacity is concerned. The appellant is, therefore, awarded Rs 32,40,000 towards loss of earning capacity."
36. Yet later and in near past, in an accident case, which tragically left in its wake a young girl in a life-long state of paraplegia, this Court, in Kajal v. Jagdish Chand and Others, (2020) 4 SCC 413, reiterated that in addition to loss of earnings, compensation for future prospects too could be factored in, and observed that:
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 "14. In Concord of India Insurance Co. Ltd. v. Nirmala Devi [(1979) 4 SCC 365: 1979 SCC (Cri) 996: 1980 ACJ 55], this Court held: (SCC p. 366, para 2) "2.... the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales."
15. In R.D. Hattangadi v. Pest Control (India) (P) Ltd. [(1995) 1 SCC 551: 1995 SCC (Cri) 2501, dealing with the different heads of compensation in injury cases this Court held thus: (SCC p.
556, para 9).
"9. Broadly speaking while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money, whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance: (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in the future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for loss of expectation of life i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
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16. In Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343: (2011) 1 SCC (Civ) 164: (2011) 1 SCC (Cri) 1161), this Court laid down the heads under which compensation is to be awarded for personal injuries: (SCC p. 348, para 6) "6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages) (1) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment:
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage)
vi) Loss of expectation of life (shortening of normal longevity) In routine personal injury cases, compensation will be awarded only under heads (i) (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant that compensation will be granted under any of the heads (ii)(b). (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and or loss of prospects of marriage) and loss of expectation of life."
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17. In K Suresh v. New India Assurance Co. Ltd., (2012) 12 SCC 274: (2013) 2 SCC (CM) 279 (2013) 4 SCC (C) 638, this Court held as follows: (SCC p 276, para 2) "2 There cannot be actual compensation for anguish of the heart or for mental tribulations The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity "The Act) stipulates that there should be grant of "just compensation: Thus, it becomes a challenge for a Court of law to determine just compensation which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance.
Loss of earnings
20. Both the Courts below have held that since the girl was a young child of 12 years only notional income of Rs 15,000 p a. can be taken into consideration. We do not think this is a proper way of assessing the future loss of income. This young girt after studying could have worked and would have earned much more than Rs 15,000 p.a. Each case has to be decided on its own evidence but taking notional income to be Rs 15,000 p.a. is not at all justified. The appellant has placed before us material to show that the minimum wages payable to a skilled workman is Rs 4846 per month. In our opinion, this would be the minimum amount which she would have earned on becoming a major. Adding 40% for the future prospects, it works to be Rs 6784.40 per month ie. 81,412.80 p.a. Applying the multiplier of 18, it works out to Rs 14,65,430.40, which is rounded off to Rs 14,66,000,"
37. In Neerupam Mohan Mathur v. New India Assurance Company, (2013) 14 SCC 15, this Court considered the case of a victim, whose injury was assessed to 70% as loss of earning capacity for amputation of the arm; he was a postgraduate
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 diploma holder in mechanical engineering, 32 years of age and earning about Rs. 3000/- per month. This Court held, approving the High Court's order (which had adopted the formula from the Workmen's Compensation Act, 1923 to determine 70% for the purpose of deciding loss of earning capacity) as follows:
12. In the present case, the percentage of permanent disability has not been expressed by the doctors with reference to the full body or with reference to a particular limb. However, it is not in dispute that the claimant suffered such a permanent disability as a result of injuries that he is not in a position of doing the specialised job of designing, refrigeration and air conditioning, For the said reason, the claimant's services were terminated by his employer but that does not mean that the claimant is not capable to do any other job including the desk job. Having qualification of BSc degree and postgraduate diploma in Mechanical Engineering, he can perform any job whore application of mind is required than any physical work.
13. In view of the forgoing discussion we find no grounds made out to interfere with the finding of the High Court which determined the percentage of loss of earning capacity to 70% adopting the percentage of loss of earning capacity as per the Workmen's Compensation Act. The total loss of income was thus rightly calculated by the High Court at Rs 6,04,800".
38. However, making a monetary assessment of the injury suffered is the only process devised to compensate the victim. The process of making such an assessment, whether in case of death or injury, is provided in Section 168 of the Act which requires that the tribunals constituted under the Act determine compensation, which appears to be just Thus, the Act vests a wide discretion upon the tribunals. The decision of this Court in Divisional Controller, KSRTC v. Mahadeva Shetty and Another, (2003) 7 SCC 197, needs mention here (para 15):
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016
15.......It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has to be bome in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just"
and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The Courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness.."
39. This Court in R.D. Hattangadi (supra), posited certain principles to be followed:
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 "9.......while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages.
Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial:
(iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
40. In the case of Raj Kumar (supra) this Court has explained in the following terms the general principles relating to compensation in injury cases and assessment of future loss of earnings due to permanent disability:
"General principles relating to compensation in injury cases
5. The provision of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 so, in a fair, reasonable and equitable manner. The Court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C.K. Subramania lyor v. T. Kunhikuttan Nair (1969) 3 SCC 64: AIR 1970 SC 376), R.D. Hattangadi v. Pest Control (India) (P) Ltd (1995) 1 SCC 551:
1995 SCC (Cr) 250) and Baker v. Willoughby (1970 AC 467:
(1970) 2 WLR 50: (1969) 3 All ER 1528 (HL)])
6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanentdisability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
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(v) Loss of amenities (and/or loss of prospects of marriage),
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i) (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b). (iii), (v) and (vi) rotating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses- Item (iii)-depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages-Items (iv), (v) and (vi)-involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability-Item (ii)(a). We are concerned with that assessment in this case.
Assessment of future loss of earnings due to permanent disability
8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(1) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
9. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, It is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. [(2010) 10 SCC 254 (2010) 3 SCC (Cri) 1258: (2010) 10 Scale 298] and Yadava Kumar v. National Insurance Co. Ltd. [(2010) 10 SCC 341: (2010) 3 SCC (Cri) 1285: (2010) 8 Scale 567])
12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
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13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to ear his livelihood.
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry, On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of "loss of future earnings" if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.
15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their affect, in particular, the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to "hold an enquiry into the claim" for determining the "just compensation". The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the "just compensation". While dealing with personal injury cases, the Tribunal should preferably equip itself with a medical dictionary and a handbook for evaluation of permanent physical impairment (for example, Manual for Evaluation of Permanent Physical Impairment for Orthopaedic Surgeons, prepared by American Academy of Orthopaedic Surgeons or its Indian equivalent or other authorised texts) for understanding the medical evidence and assessing the physical and functional
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 disability. The Tribunal may also keep in view the First Schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.
17. If a doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether It is possible to deduce the corresponding functional permanent disability with reference to the whole body and, if so, the percentage.
18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give "ready to use" disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily give liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or discharge certificate will not be proof of the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of the claimant, is tendered for cross examination with reference to the certificate. If the Tribunal is not satisfied with
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local hospitals/medical colleges) and refer the claimant to such Medical Board for assessment of the disability.
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
The Hon'ble Surpeme Corut in the case of Hari Om referred supra has observed at para 4 as under:
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 "4. We have heard learned counsel for the parties and find that the High Court has erred in law in reducing the amount of compensation. The appellant though continues to be in service but his efficiency as a constable has been seriously compromised. Therefore, the amount of compensation awarded by the Motor Accidents Claims Tribunal as Rs.21,94,082/- was just and proper keeping in view the injuries and its long-
term effect on the person of the appellant."
Keeping in mind the enunciation of law laid down by the Hon'ble Supreme Court, and on appreciation of evidence on record more particularly the evidence PW-4, has opined that the appellant has suffered totally 135% of permanent disability (55% permanent disability to right lower limb, 40% permanent disability to left lower limb and 40% permanent disability to right upper limb). This Court is of the considered view that out of total 135% disability referred supra to the different limbs normally 1/3rd of it would be assessed for whole body and it comes to 45% of whole body permanent disability. Hence, this Court taking into account the medical evidence on record,
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 it would be appropriate to assess the permanent disability of 45% of whole body. Hence, the appellant is entitled for the compensation for loss of future earning capacity. The evidence on record clearly demonstrates that the efficiency level of working of the appellant has been reduced substantially consequently the income has also reduced. Hence, the appellant is entitled for the compensation under the head loss of future earning capacity as under:
Rs.21,000 x 12 x 18 x 45%=20,41,200/-
b) The Tribunal has awarded compensation of Rs.75,000/- under the head pain and suffering the same is on the lower side as the appellant has suffered 3 major fractures referred supra and was inpatient for a period of 25 days. This Court is of the considered view that the appellant is entitled for additional compensation of Rs.40,000/- under the head pain and suffering.
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c) The Tribunal has awarded compensation of Rs.35,000/- for the head loss of amenities, the said compensation is on the lower side as the appellant has suffered injuries and pain for a period of more than 4 months including 25 days as inpatient and thereafter for the purpose of follow up treatment, he has lost the happiness during the said period. Hence it would be appropriate to award additional Rs.30,000/- under this head.
d) This Court is of the considered view that the award of compensation by the Tribunal under the head food and nourishment, conveyance is on the lower side. Hence, the appellant is entitled for the additional Rs.20,000/- for both the heads referred supra.
e) The Tribunal has committed error in not awarding any compensation for loss of income during laid up period. Admittedly, the claimant was drawing salary of Rs.21,000/- p.m. and inpatient for a
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 period of 25 days and thereafter he has taken rest for a period of 2 and half months. Hence, the appellant is entitled for a sum of Rs.63,000/-
under the head loss of income during laid up period.
10. The award of compensation under the head of medical expenses is unaltered.
11. The appellant is entitled for interest at the rate of 6% p.a. on the enhanced compensation from the date of petition till its payment.
12. Thus, the appellant/claimant would be entitled to modified compensation as under:
Sl.No. Particulars Amount
1. Pain & suffering Rs.1,15,000/-
2. Medical expenses Rs.8,340/-
3. Loss of earning capacity Rs.20,41,200/-
4. Loss of future amenities of life Rs.65,000/-
5. Loss of income during laid-up Rs.63,000/-
period
6. Food and nourishment Rs.20,000/-
7. Conveyance & other sundry Rs.20,000/-
expenses
Total Rs.23,32,540/-
Compensation awarded Rs. 1,38,340/-
by the Tribunal
Enhanced compensation Rs.21,94,200/-
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MFA No. 101863 of 2016
13. Thus, the claimant would be entitled to total compensation of Rs.23,32,540/- as against Rs.1,38,340/- awarded by the Tribunal.
14. Hence, we pass the following order.
ORDER a. The appeal is allowed in part.
b. The judgment and award dated 28.01.2016 passed in MVC No.15/2013 by the 4th Addl.
District and Sessions Judge and Member, MACT-V, Belagavi, is modified to the extent that the claimant would be entitled to total compensation of Rs.23,32,540/- as against Rs. 1,38,340/- awarded by the Tribunal.
c. The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till date of payment.
d. Respondent/insurance company shall deposit the enhanced compensation amount along with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.
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NC: 2023:KHC-D:12668-DB MFA No. 101863 of 2016 e. Registry to transmit the records to the Tribunal forthwith.
f. Draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE Naa List No.: 1 Sl No.: 14